Flaugher v. Flaugher

Jan 31, 2020
2019-CA-5
Versions:

O P I N I O N

Rendered on the 31st day of January, 2020.

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MICHELLE M. MACIOROWSKI, Atty. Reg. No. 0067692, 7333 Paragon Road, Suite 170, Dayton, Ohio 45459
Attorney for Plaintiff-Appellant

JAMIE L. ANDERSON, Atty. Reg. No. 0081218, 2190 Gateway Drive, Fairborn, Ohio 45324
Attorney for Defendant-Appellee

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FROELICH, J.

{¶ 1} Randy Flaugher appeals from a judgment of the Miami County Common Pleas Court, Domestic Relations Division, which vacated a portion of his 1998 divorce decree. For the reasons that follow, the judgment of the trial court will be affirmed.

Factual and Procedural Background

{¶ 2} Randy Flaugher (“Randy”) and Bonnie Flaugher (“Bonnie”) were married in 1980 and subsequently had two children together. After Randy retired from the military in 1996, the family resided in North Carolina. In August 1997, Randy moved to Ohio, while Bonnie and the children remained in North Carolina.

{¶ 3} On February 9, 1998, Randy filed a complaint for divorce in Miami County. (Doc. #1.) On the same date, he moved for service by publication, attesting by affidavit that he had been unable to ascertain through reasonable diligence Bonnie’s then-current address. (Doc. #9, 10.) Pursuant to court order, service by publication in The Piqua Daily Call was completed on March 23, 1998. (Doc. #12, 13.) Bonnie did not file an answer or otherwise appear in the divorce action. On June 1, 1998, the trial court entered a final judgment and decree of divorce by default, in which it awarded Randy certain assets, including “his military retirement, free and clear of any claim” by Bonnie. (Doc. #19.) The judgment also denied any award of spousal support. (Id., p. 3.) Further stating that it “d[id] not believe that it ha[d] jurisdiction with regard to the minor children,” the court declined to address the issues of child custody or child support. (Id.)

{¶ 4} Sometime in 2000, Randy filed an action in North Carolina seeking legal custody of the couple’s two minor children. (See Doc. #41, transcript of November 9, 2018 hearing in this case, Plaintiff’s Exh. 2.) Bonnie appeared at an October 4, 2000 hearing on Randy’s custody complaint (see id., Plaintiff’s Exh. 4);1 she became aware of the existence of the Ohio divorce decree by no later than that date. With Bonnie’s consent, the North Carolina court awarded custody of the children to Randy. (Id.)

{¶ 5} On July 18, 2018, Bonnie filed a pro se motion in the Miami County case to set aside the default judgment entered against her more than 20 years earlier,2 arguing that she had never resided in Ohio and never received proper service in that action. (Doc. #22.) Randy opposed that motion, arguing that service on Bonnie was perfected by publication and that Bonnie’s motion was “unreasonable” and “untimely” given her awareness of the divorce since at least 2000. (Doc. #29.)

{¶ 6} At a November 9, 2018 hearing before a magistrate, Bonnie presented herself and the couple’s now-adult daughter as witnesses. (Doc. #41, pp. 5-16, 24-45.) Both testified that Bonnie and the children remained in North Carolina after Randy moved to Ohio, and that although the three changed residences multiple times, their whereabouts were always known to Bonnie’s mother and sister in North Carolina, whose addresses and telephone numbers remained consistent and were known to Randy. Randy then testified that prior to filing for divorce in 1998, he drove from Ohio to North Carolina in an attempt to locate Bonnie. He said he found the family’s former residence vacant and was unable to obtain a new address for her from a mutual friend, a storage facility, the postal service, or Bonnie’s mother. (Id., pp. 45-62.) The magistrate accepted certain exhibits presented by both parties. (Id., pp. 17-21, 62-63.)

{¶ 7} On November 20, 2018, the magistrate issued a decision finding that the trial court had had subject matter jurisdiction to enter the parties’ divorce decree in 1998, but had lacked personal jurisdiction over Bonnie for purposes of dividing marital property or awarding spousal support. (Doc. #35.) On April 15, 2019, the trial court overruled Randy’s objections and adopted the magistrate’s decision, entering a judgment that confirmed the parties’ divorce decree “in so far [sic] as the parties were released from the obligations of the marital contract and were divorced effective June 1, 1998,” but declared void and vacated that decree’s provisions “relating to division of assets and spousal support.” (Doc. #49.) Pursuant to Civ.R. 54(B), the court certified its judgment as a final appealable order. The trial court then scheduled a hearing on Bonnie’s request for spousal support, but on a motion by Randy, stayed the matter pending an appeal to this Court. (Doc. #53.)

{¶ 8} Randy’s appeal from the trial court’s judgment sets forth six assignments of error:

  1. The trial court erred in not reviewing [Bonnie’s] motion to set aside default judgment under the requirements of Civ.R. 60(B).
  2. The trial court erred in not denying [Bonnie’s] motion to set aside default judgment on the basis that she failed to prove she was entitled to relief from judgment pursuant to Civ.R. 60(B).
  3. The trial court erred in not denying [Bonnie’s] motion to set aside default judgment pursuant to the doctrine of laches.
  4. The trial court erred in granting [Bonnie’s] motion to set aside default judgment without inquiring as [to] any facts which might have estopped her from requesting it be set aside.
  5. The trial court erred in granting the motion to set aside default judgment as it was not properly pled or presented and Randy had no notice that the court would review the motion as a direct attack on jurisdiction under common law.
  6. The trial court erred in not denying [Bonnie’s] motion to vacate default judgment under the equity power of the court.

Standard of Review

{¶ 9} A decision to grant a motion for relief from judgment falls within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Calicoat v. Calicoat, 2d Dist. Montgomery No. 28134, 2019-Ohio-2031, ¶ 25, citing Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987). That standard of review applies regardless of whether the motion was granted under Civ.R. 60(B), see id., or pursuant to the trial court’s inherent authority to vacate void judgments. See During v. Quoico, 2012-Ohio-2990, 973 N.E.2d 838, ¶ 16 (10th Dist.). An abuse of discretion implies that the trial court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

Assignments of Error #1, 2, 5 – Civ.R. 60(B) vs. common law analysis

{¶ 10} On appeal, Randy does not challenge the trial court’s determination that Bonnie never received proper service of the divorce complaint. Instead, he argues that Bonnie failed to satisfy Civ.R. 60(B)’s requirements for relief from judgment (Second Assignment of Error), and that the trial court erred by granting her motion despite her failure to fulfill those requirements (First Assignment of Error). Additionally, he argues that the court erred by granting Bonnie’s motion to set aside judgment without prior notice to Randy that the motion would be construed “as a direct attack on jurisdiction” (Fifth Assignment of Error). We will address those three related arguments together.

{¶ 11} A trial court has the authority to terminate a marriage so long as one party is domiciled in that state. Collins v. Collins, 165 Ohio App.3d 71, 2006-Ohio-181, 844 N.E.2d 910, ¶ 10 (1st Dist.), citing Hager v. Hager, 79 Ohio App.3d 239, 243, 607 N.E. 63 (2d Dist.1992). However, “[i]n order to determine financial issues, the trial court must have personal jurisdiction based upon notice to and proper service on the defendant.” Id., citing Kvinta v. Kvinta, 10th Dist. Franklin No. 02AP-836, 2003-Ohio-2884; Depaulitte v. Depaulitte, 138 Ohio App.3d 780, 742 N.E.2d 659 (2d Dist.2000); Stanek v. Stanek, 12th Dist. Butler No. CA94-03-080, 1994 WL 519826 (Sept. 26, 1994). Accordingly, a court “must have personal jurisdiction over the nonresident spouse in order to determine issues of spousal support and property.” During at ¶ 39, citing Armstrong v. Armstrong, 162 Ohio St. 406, 410, 123 N.E.2d 267 (1954); Collins at ¶ 11; Kvinta at ¶ 48; Stanek; see also Depaulitte at 785 (affirming judgment “insofar as it granted the parties a divorce,” but reversing and vacating judgment against out-of-state defendant in “all other respects”).

{¶ 12} Bonnie’s one-page pro se motion to set aside the 1998 divorce decree never referenced Civ.R. 60(B), but rather advanced various federal regulations that Bonnie suggested would entitle her to share in Randy’s military retirement benefits as “a marital asset.” (Doc. #22.) Regardless, that motion succinctly articulated Bonnie’s contentions that she “was never served with the Summons” in Randy’s divorce action and also “has [n]ever resided in the State of Ohio.” (Id.) The response filed by Randy’s attorney invoked Civ.R. 60(B), but confirms that he understood Bonnie’s motion as presenting a challenge to the trial court’s “personal jurisdiction over” Bonnie. (Doc. #29, p. 1.) Given that jurisdictional challenge, the trial court employed the proper analysis in deciding Bonnie’s motion.

{¶ 13} Under most circumstances, a motion for relief from an entry of judgment by default would be brought pursuant to Civ.R. 60(B). However, “a judgment rendered by a court that has not acquired personal jurisdiction over the defendant is void.” During, 2012-Ohio-2990, 973 N.E.2d 838, at ¶ 16, citing Malone v. Berry, 174 Ohio App.3d 122, 2007-Ohio-6501, 881 N.E.2d 283, ¶ 10 (10th Dist.). See also Portfolio Recovery Assocs., LLC v. Thacker, 2d Dist. Clark No. 2008 CA 119, 2009-Ohio-4406, ¶ 22 (“Where service of process is not made in accordance with the Rules of Civil Procedure, the trial court lacks jurisdiction to consider the complaint, and any judgment on that complaint is void ab initio.”). “Because a court has the inherent authority to vacate a void judgment, a party who asserts that the trial court lacks personal jurisdiction over him or her due to ineffective service of process need not satisfy the requirements of Civ.R. 60(B).” Portfolio Recovery Assocs. at ¶ 22, citing Carter-Jones Lumber Co. v. Meyers, 2d Dist. Clark No. 2005 CA 97, 2006-Ohio-5380, ¶ 10; United Home Fed. v. Rhonehouse, 76 Ohio App.3d 115, 123, 601 N.E.2d 138 (8th Dist.1991). See also During at ¶ 16, citing Patton v. Diemer, 35 Ohio St.3d 68, 518 N.E.2d 941 (1988), paragraph four of the syllabus (“The authority to vacate a void judgment arises from the inherent power possessed by Ohio courts, not Civ.R. 60(B).”).

{¶ 14} When a defendant seeks to set aside a void judgment by filing a Civ.R. 60(B) motion, courts properly treat the motion as a common-law motion to vacate the judgment. During at ¶ 16, citing Bendure v. Xpert Auto, Inc., 10th Dist. Franklin No. 11AP-144, 2011-Ohio-6058, ¶ 16. As to such a motion, “[o]nly lack of proper service must be established.” Portfolio Recovery Assocs. at ¶ 22, citing Carter-Jones Lumber Co. at ¶ 10.

{¶ 15} The record supports the trial court’s conclusion that, due to the absence of proper service, it lacked personal jurisdiction over Bonnie when it issued its 1998 judgment. Because that judgment was void for lack of jurisdiction as to the portions regarding spousal support and division of property, the trial court did not abuse its discretion in reviewing Bonnie’s motion to set aside judgment as one brought under common law rather than under Civ.R. 60(B). Bonnie’s alleged inability to satisfy Civ.R. 60(B)’s requirements for relief from judgment therefore is irrelevant.

{¶ 16} We also are not persuaded that the trial court improperly ruled on Bonnie’s motion in the absence of adequate notice to Randy of the legal basis for Bonnie’s claim. Randy raised no complaint in the trial court about Bonnie’s contentions. Contrary to the suggestion in Randy’s appellate brief that Bonnie never made “a specific jurisdictional argument,” his own memorandum in opposition to Bonnie’s motion for relief from judgment characterized her motion as one challenging the trial court’s “personal jurisdiction over” her. (Doc. #29, p. 1.) Further, despite his awareness of that jurisdictional issue, Randy failed to – and presumably could not – demonstrate that personal jurisdiction existed. The trial court did not abuse its discretion by proceeding to apply the proper common-law analysis to Bonnie’s motion without explicitly advising Randy of its intent to do so.

{¶ 17} Randy’s first, second, and fifth assignments of error are overruled.

Assignments of Error #3, 4, 6 – laches, estoppel, and other equitable relief

{¶ 18} Randy’s remaining assignments of error contend that the trial court erred by not denying Bonnie’s motion on the basis of laches (Third Assignment of Error) or the court’s own “equity power” (Sixth Assignment of Error), and by not considering whether Bonnie “should be estopped” from having the divorce decree set aside (Fourth Assignment of Error). The trial court did not abuse its discretion in any of those regards.

{¶ 19} “Stated simply, laches is an equitable doctrine that bars a party from asserting an action when there is an unexcused delay that prejudices the opposing party.” Gordon v. Reid, 2d Dist. Montgomery No. 25507, 2013-Ohio-3649, ¶ 16, citing Baker v. Chrysler, 179 Ohio App.3d 351, 2008-Ohio-6032, 901 N.E.2d 875, ¶ 31 (2d Dist.). “The elements of laches are (1) unreasonable delay or lapse of time in asserting a right, (2) absence of an excuse for such a delay, (3) knowledge – actual or constructive – of the injury or wrong, and (4) prejudice to the other party.” Id., quoting Martin Marietta Magnesia Specialties, LLC v. Pub. Util. Comm., 129 Ohio St.3d 485, 2011-Ohio-4189, 954 N.E.2d 104, ¶ 45, citing State ex rel. Cater v. N. Olmsted, 69 Ohio St.3d 315, 325, 631 N.E.2d 1048 (1994).

{¶ 20} “Laches does not preclude the vacating of a void judgment, for no amount of acquiescence can make a void judgment valid.” Tackett v. Dayton, 2d Dist. Montgomery No. 6742, 1981 WL 2838, *4 (June 25, 1981); accord Daniel v. Wright-Patterson Credit Union Inc., 2d Dist. Montgomery No. 7435, 1981 WL 5365, *1 (Dec. 8, 1981). Although laches may be a viable affirmative defense to a belated challenge to the spousal support or marital property award in a valid judgment, the trial court did not err by declining to consider the doctrine of laches as a basis for preserving the void judgment against Bonnie. Randy’s third assignment of error is overruled for that reason.

{¶ 21} A similar conclusion follows as to Randy’s estoppel argument. Although Randy cites only to a 1976 decision from another state,3 we accept the general principle he asserts – i.e., that a party “who accepts benefits under a divorce decree” could be equitably “estopped” from having that judgment set aside. On its face, however, the parties’ divorce decree in this case awarded Bonnie no spousal support or marital property, leaving no basis to assume that she derived any “benefit” from that judgment. Furthermore, Randy remains free to raise estoppel as an affirmative defense to Bonnie’s claim for a share of his retirement benefits. The trial court did not abuse its discretion by failing to inquire into a hypothetical and fact-dependent estoppel defense before setting aside a void judgment. Randy’s fourth assignment of error is overruled.

{¶ 22} Finally, a trial court has “broad discretion” with regard to the exercise of its equitable powers as to spousal support matters. See Colp v. Colp, 2d Dist. Montgomery No. 6976, 1981 WL 2864, *3 (July 28, 1981). The court did not abuse its discretion by declining to use that power to deny Bonnie’s motion to set aside a void judgment. The trial court retains its equitable power to render a new decision based on its assessment of the relative merits of the parties’ positions as to the payment of spousal support or the division of marital property, and to consider Bonnie’s 20-year delay as a factor affecting its analysis. The sixth assignment of error is overruled.

Conclusion

{¶ 23} The judgment of the trial court will be affirmed.

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TUCKER, P.J. and DONOVAN, J., concur.

Copies sent to:

Michelle M. Maciorowski
Jamie L. Anderson
Hon. Jeannine N. Pratt

Notes

1
That hearing transcript from the North Carolina action is not part of the record here.
2
Although the motion appears to request that the judgment be set aside in its entirety, a close reading reveals that Bonnie does not challenge the divorce itself, but rather seeks to have Randy’s military retirement pay “divided as a marital asset.” (Doc. 22.)